New Multilateral Framework on Procedures Approved by the International Competition Network
Framework Will Promote Fundamental Due Process in Antitrust Enforcement
On April 3, 2019, the Steering Group of the International Competition Network (ICN) unanimously approved a multilateral framework on procedures among antitrust enforcement agencies globally to promote fundamental due process in competition law investigation and enforcement. The framework is based on the principles of the Antitrust Division’s Multilateral Framework on Procedures (MFP), an initiative that was originally announced by Assistant Attorney General Makan Delrahim at the Council of Foreign Relations in June of last year.
The Antitrust Division, in consultation with a dozen leading competition agencies from around the world, developed the proposal, which was then introduced to the global antitrust community last fall and received overwhelming support. At the request of several partner agencies, the Antitrust Division agreed to implement the proposed arrangement through the International Competition Network to take advantage of existing structures and to reduce administrative burdens. The multilateral framework implements this initiative by utilizing established ICN institutions and processes, and will be open to all national, supranational, and customs territory-specific competition agencies around the world, whether or not a member of the ICN.
This historic multilateral agreement recognizes fundamental principles of transparency and procedural fairness in antitrust enforcement and promotes review mechanisms to ensure that participating agencies abide by these norms. Adopting the substance of the Antitrust Division-initiated proposal, the framework identifies universal due process principles that are widely accepted across the globe, including commitments regarding non-discrimination; transparency and predictability; proper notice, access to information, meaningful and timely engagement, and opportunity to defend; timely resolution of proceedings; confidentiality protections; avoidance of conflicts of interest; access to counsel and privilege; written enforcement decisions and public access to decisions; and availability of independent review of enforcement decisions. As in the original proposal, the framework complements these substantive norms with review mechanisms designed to ensure meaningful compliance, including consultations, agency reports on implementation, and periodic assessment meetings.
“Adopting the Framework on Competition Agency Procedures is a remarkable and historic achievement for antitrust enforcement,” said Assistant Attorney General Makan Delrahim of the Antitrust Division. “It sends a clear signal that competition agencies across the globe – despite differences in their structures and proceedings, as well as the legal systems in which they operate – are committed to procedural fairness. We are grateful that the framework approved by the ICN Steering Group, in record time, is equivalent in all respects to the principles of the MFP that was originally proposed by the Antitrust Division. By combining strong substantive principles with meaningful review mechanisms, it goes well beyond anything competition agencies have ever done before.”
Beginning on May 1, 2019, the framework will be open for signature to all national, supranational, and customs territory-specific competition agencies, including ICN member and non-member agencies. It will come into effect on May 15, 2019, at an inauguration ceremony of the charter participants during the ICN annual conference in Cartagena, Colombia.
The ICN, founded by 15 agencies including the Department of Justice’s Antitrust Division, was created in October 2001 to increase understanding of competition policy and promote convergence toward sound antitrust enforcement around the world. The ICN has grown to include 138 member agencies from 125 jurisdictions, supported by a wide network of non-governmental advisors from around the world.
The ICN’s Framework on Competition Agency Procedures can be found here.